Although the Illinois statutes[[427]] clearly state that any school officer who excludes from a public school any child on account of color shall be fined from five dollars to one hundred dollars for each offence, and prohibits school directors and officers from excluding, directly or indirectly, children on account of color, still the numerous cases which have arisen involving the point show that the school officers have not always been in thorough agreement with the law.
In 1874 the school directors of McLean County, Illinois, erected a separate school building, twelve by fourteen feet, for the exclusive purpose of educating the three or four colored children in the district therein. It was admitted that there was plenty of room for them in the regular school building. One of the taxpayers of the district petitioned for an injunction against the building of the house, but it was completed before any decision was rendered. In a case which arose later, the court[[428]] held that the school directors had no right to make such a discrimination against Negroes, and that any taxpayer might object. In 1882 the board of education of Quincy, Illinois, divided the city into eight districts and set apart one school for Negroes. A case arising over this division and segregation, the court[[429]] ruled that, in the absence of State legislation, the board had no power to establish separate schools for Negroes. In 1886 the school board of Upper Alton passed a resolution excluding colored children from the white school unless they had reached the high school grade. A Negro, whose children below high school grade were refused admission to the white school, brought suit, and the court[[430]] held that the school board had no power to separate the children on account of color. In 1899 the common council of Alton established a school for Negroes, but the court[[431]] held that this involved an illegal discrimination against them. The Associated Press report[[432]] of November 28, 1906, had the following statement: “East St. Louis, Ill., Nov. 28, 1906—A large brick building at 1,400 Missouri avenue, which was leased last week by the Board of Education for a Negro school, was destroyed by fire to-day, and there is evidence that prejudice against the establishment of a school for Negroes caused the building to be set on fire. Late last night the building was discovered to be on fire, but prompt action saved it. The firemen found rags soaked in oil on the second floor hallway. The destruction of the building to-day makes the second building leased for a Negro school that has been burned within the last two weeks.” The latest Illinois case on the subject is that of April 23, 1908, The People v. The Mayor, etc., of Alton.[[433]] A Negro’s children were excluded from the public school most convenient to them and directed to a colored school less convenient. He petitioned for a writ of mandamus against the mayor and common council to compel them to admit his children to the most convenient school, and after the case had been tried seven times by juries in the circuit court, the writ was finally granted by the Supreme Court. Although all of these cases were decided against race separation they show that there is still an appreciable feeling in Illinois against the white and colored children being taught in the same schools. The trouble at Alton is not yet over. After a fourteen years’ fight the Negroes won, as has been seen, before the Supreme Court of the State. But when the Negro children applied for admission to the public schools, they were again refused. Before the schools were opened for the session of 1908–09, many of the Negroes were visited and induced to send their children to the four Negro schools built in Alton. But forty other Negroes filed a petition for a writ of mandamus against the mayor and council of Alton seeking to have them answer why they refused to obey the mandate of the Supreme Court of the State.[[434]]
A statute[[435]] of Indiana of 1869 required the trustees of schools to organize separate but equal schools for Negroes. If there were not enough Negroes in the district for a school, two or more districts might be consolidated for that purpose. If there were not enough within a reasonable distance, then the trustees might provide such other means of education of colored children as would employ their proportion of the school fund to the best advantage. A case[[436]] testing the constitutionality of this law, which arose in 1874, is one of the most exhaustive cases on the subject. The father of Negro children applied for a mandate to compel the admission of them to white schools. The court held that the separation of the races in schools is not in violation of the Federal or the State Constitution. The common schools, it was said, are based upon State legislation, are domestic institutions, and, as such, subject to the exclusive control of the constituted authorities of the State. The Federal Constitution does not provide for any general system of education to be conducted and controlled by the national government, nor does it vest in Congress any power to exercise a general or special supervision over the State on the subject of education. Under the Constitution of Indiana the common school system must be general, uniform, and equally open to all, but uniformity will be secured where all schools of the same grade have the same system of government and discipline, the same branches of learning taught, and the same qualifications for admission. The court said: “In our opinion the classification of scholars on the basis of race or color, and their education in separate schools, involve questions of domestic policy which are within the legislative discretion and control, and do not amount to an exclusion of either class ... there would be as much lawful reason for complaint by one scholar in the same school that he could not occupy the seat of another scholar therein at the same time the latter occupied it, or by scholars in different classes in the same school, that they were not placed in the same class, or by scholars in different schools, that they were not all placed in the same school, as there is that black and white children are placed in distinct classes and taught in separate schools.”
In 1877, the Indiana law of 1869 was amended[[437]] so that the school directors might (not must) organize separate schools for the races. In case a colored school was not provided, the colored children should be allowed to attend the regular white school. When the colored child had reached a grade higher than that taught in the colored school, he must be admitted to the regular high school, and no distinction therein should be made on account of race or color. In 1882, there were only about six Negro children in a certain district, and the trustees were indicted for not establishing a separate school for them. The court[[438]] ruled that it was impracticable to maintain a separate school for so small a number. In 1883, a Negro pupil brought suit on the ground that he was not admitted to the white high school, under the law of 1877, but he did not show that he had passed the required examination. The court[[439]] held that the discretion as to the competency of the child is a matter for the board of education, not the court.
The laws of Iowa have not since 1865 required or permitted a separation of the races in schools. In 1868, a Negro girl, denied admission to the graded schools of Muscatine, brought suit, and the court[[440]] gave relief, saying that the school directors could not require Negroes to attend separate schools; that if separate schools for Negroes are prescribed, the same might as well be done for German, Irish, and French children. The same principle has been affirmed in subsequent decisions which show that there have been instances in that State of school boards trying to separate the races.[[441]]
By the statutes[[442]] of Kansas of 1868 the boards of education of cities of the first class—that is, cities of over 150,000 inhabitants—had the “power to organize and maintain separate schools for the education of white and colored children.” This power was omitted in a revision of the school law[[443]] in 1876, and consequently repealed by implication. But in 1879 a statute[[444]] was passed amending the school law, which revived the power to separate the races in cities of the first class “except in the high school, where no discrimination shall be made on account of color.” The constitutionality of this statute was upheld by the Supreme Court[[445]] of Kansas in 1903, and again in 1909. The State has not given this power of separation to cities of the second class, so the courts[[446]] have held that, except in cities of the first class, the colored children must be admitted to the schools along with the white children. The Superintendent of Public Schools of Kansas,[[447]] in August, 1906, said: “There is a movement in Kansas looking toward the segregation of the races in the public schools, where the per cent. of colored population will warrant the separation.”
A law[[448]] of Nevada of 1865 excluded Negroes, Mongolians, and Indians from the public schools, and prescribed as a punishment to the school opening its doors to all races a withdrawal of its share of the public school fund. The school officials might, however, if they deemed it advisable, establish a separate school for the children of Negroes, Mongolians, and Indians, to be supported out of the public school fund. In 1872 it was held[[449]] that a mandamus would lie compelling trustees to admit colored persons to the public schools where separate schools were not provided for such persons. No subsequent reference to the subject appears in the statutes or reports, so it may be assumed that separate schools no longer exist in Nevada.
A statute[[450]] of New Jersey of 1881 made it unlawful to exclude anyone from the public school on account of “religion, nationality, or color.” The town of Burlington had four public schools, one of which had been set apart for Negroes. A Negro petitioned for a writ of mandamus to compel the trustees to admit his children to the white schools, and the court[[451]] issued the writ. About four years ago the public schools of East Orange, New Jersey, adopted the policy of teaching the Negro pupils in separate classes; but it was soon abandoned because, the school authorities said, “it seemed like going back to old ideas.”[[452]]
The city of Buffalo, New York, under a provision of its charter, established separate schools for Negroes, and this action was upheld by the court[[453]] on the ground that the right to attend common schools is a legislative grant and not a constitutional guarantee. The city of Albany also set apart one school for Negroes, and this was held[[454]] constitutional in 1872. And in 1883, the Supreme Court[[455]] of that State held that, if separate schools are provided for colored children, they may be excluded from the white schools. In 1899, the same was held[[456]] for the Borough of Queens. These decisions were under the law of 1864,[[457]] reënacted in 1894,[[458]] which gave power to the school authorities of cities and incorporated villages, when they deemed it expedient, to establish separate schools. But this law was repealed in 1900,[[459]] and the present law reads: “No person shall be refused admission to or be excluded from any public school in the State of New York on account of race or color.”
An Ohio statute[[460]] of 1878 gave the boards of education discretionary power to establish separate schools for Negroes. This law was repealed in 1887,[[461]] and thereafter all public schools were open to colored children.[[462]]